United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	NO APPEARANCE BY OR REPRESENTATION ON BEHALF OF THE APPELLANTS


 


JUDGE C SMITH QC: This is an ex-parte application by the employers, Rockfield Industries Ltd, for leave to proceed to a full hearing of their appeal against the decision of an Industrial Tribunal sitting at Norwich in May and July 1997.

On the first hearing the Chairman, sitting alone, decided that the Applicant before the Tribunal, Mrs Reeves, did have more than two years continuous service at the time of her dismissal and at the second hearing the full Industrial Tribunal decided that she had been unfairly dismissed and awarded her compensation.

It appears from the Notice of Appeal that the complaints sought to be made by the employer relate exclusively to the decision made by the Chairman on the first hearing and there may be a real question as to whether he is, indeed, in time with regard to complaints in relation to that matter. Be that as it may, we have considered the grounds of appeal which he has put forward, which we repeat, appear to relate exclusively to the question of whether Mrs Reeves had the necessary qualifying service.

Before going any further we should mention, of course, that the Director or the appropriate person from Rockfield Industries Ltd (that would be Mr Hilton, no doubt) maintains that neither he nor the company, indeed, have received notice of today's hearing. We have satisfied ourselves, with the help of the clerk who sits with us, that the notice was sent out in the ordinary way and, on the face of it, appears to have been properly served. There has been a telephone call this morning received by the Employment Appeal Tribunal from the employer to the effect that no service was effected in relation to it when the representative, no doubt Mr Hilton or someone speaking on his behalf, suggested that there should be an adjournment but put forward very much as a second option that the matter should be dealt with.

We have decided here, in all the circumstances, that there is nothing further that really could be said before us, which is not contained in the Notice of Appeal in relation to this matter, and we have decided therefore, in all the circumstances, to proceed with the hearing of this ex-parte application. We have, of course, reminded ourselves that the Applicant employer only have to show that there is an arguable point of law in order to be given leave to proceed to a full hearing.

In what we regard as a careful decision, of which extended reasons were given on 20 May 1997, the Chairman found the relevant facts at paragraphs 2 - 4 inclusive of the extended reasons setting the facts out in some considerable detail and condescending to particularity with regard to them and, in particular, with regard to the matter of the gaps in the employment which Mrs Reeves had.

He then considered the law and applied himself to the difficult questions as to whether certain gaps in Mrs Reeves' employment had the effect of breaking her continuity of service. He, correctly in our judgment, characterised the gaps as being of two kinds, namely first, the general seasonal gaps in January and February of each year and, secondly, a particular gap from January to April 1995 when the old factory had to be closed for health and safety reasons. He concluded, having correctly applied the law to the facts that he had found, that the seasonal gaps were within section 212(3)(c) of the Employment Rights Act 1996 and that the special gap, which he had defined, amounted to a temporary cessation of work within section 212(3)(b) of the Employment Rights Act 1996. In addition he held that the events of October 1996, when Mrs Reeves' employment was transferred to the respondent company, Rockfield Industries Ltd, the Applicant before us today, amounted to a transfer under TUPE.

It is against that background of what we regard as being a careful decision on what the Chairman rightly described as being rather technical matters that we have to see whether there is any arguable point of law. In paragraph 8 of his decision he put it this way:

"8 For those reasons, I am sorry they are rather technical but they have to be expressed in this way, I find that there was 24 months continuous service or more and therefore the applicant has the right to come to an industrial tribunal and bring a claim for unfair dismissal."

We are satisfied, having looked carefully at the Notice of Appeal, that nothing that is contained in the Notice of Appeal raises any fresh matter at all. All the matters raised in the Notice of Appeal either were explicitly and expressly considered by the Chairman when he found facts in arriving at his decision, or should have been placed before the Chairman at that time. If they differ in some way from the evidence that was placed in front of the Chairman, then the correct evidence should have been given at the Tribunal hearing and this is in no way a case where we could consider any fresh evidence, or the admission of any fresh evidence should the matters contained in the Notice of Appeal depart, in any way, from the evidence which was before the Chairman. However, as far as we can see looking at the Notice of Appeal, it seems to be just a recapitulation of what had already been unsuccessfully argued in front of the Chairman.

Accordingly, we have concluded that there is no arguable point of law which arises on this appeal and the application is dismissed.